Google tries to kick Authors Guild out of court in book case

After the rejection of their settlement, Google and the Author's Guild are …

It's as if the last four years hadn't happened. In 2007, Google's legal dispute with a coalition of authors and publishers over Google Books was put on hold while the parties hashed out a settlement agreement. That agreement was announced in 2008, but it attracted a massive backlash that convinced Judge Denny Chin to reject the settlement earlier this year.

So after three years of working together to try to get their settlement approved, the parties are now back in courts and at each others' throats. Google's opponents include both associations like the Author's Guild and the American Society of Media Photographers, as well as several individual authors and photographers. On Thursday, Google asked Judge Chin to boot the associations from the courtroom, arguing that copyright infringement lawsuits must be filed by copyright holders themselves, not associations claiming to represent them. If successful, the motion would leave the individual plaintiffs to carry on the lawsuits on their own, weakening the plaintiffs' position.

There are actually three distinct book-related lawsuits against Google that are running in parallel. The two original lawsuits, one by major book publishers and one by the authors, were initiated in 2005. These are the cases the parties tried to settle in 2008. A third lawsuit was filed in 2010 by a coalition of photographers and illustrators who felt their interests were not represented in the settlement negotiations.

James Grimmelmann, a copyright scholar at New York Law School, told Ars that the publishers are likely to settle their lawsuit. "The publishers are willing to settle on terms that Google thinks are pretty easy to live with," he said. The publishers are primarily interested in maximizing revenue, and so they're strongly motivated to find a way to let Google digitize their books in exchange for a cut of the revenue. Grimmelmann said there have been rumors of an imminent settlement in the publishers' case for months.

But Google is likely to carry on its battle with the authors, photographers, and other individual copyright holders. Some authors consider the fight a matter of principle. And even if Google convinced the individual named authors to settle their lawsuit, that wouldn't prevent other authors from filing lawsuits in the future. So Google may have little choice but to seek a ruling from the courts that its scanning project is legal under copyright's fair use doctrine.

The authors have sought to transform their lawsuit into a class-action representing a broader range of copyright holders, and the photographers are likely to do the same. That request could prove decisive. If Judge Chin allows the class-action lawsuit, Google will face much higher damages. On the other hand, if class certification fails, Grimmelmann said the plaintiffs may be forced to drop the case, because the plaintiffs' lawyers may not consider it financially rewarding to represent a handful of individual copyright holders.

That will be especially true if the Author's Guild and other associations are dismissed from the cases. Grimmelmann argued that Google's Thursday filing seeking their dismissal was a tactical strike to prepare the ground for its motions opposing class certification early next year. Litigation is expensive, and eliminating the associational plaintiffs from the cases could make it harder to finance the lawsuit. Moreover, removing the associations would make it easier for Google to argue against class certification on the grounds that the individual copyright holders remaining in the cases don't adequately represent the interests of authors and photographers generally.

If Judge Chin certifies the classes, then the cases will move forward, with Google making a fair use argument later in 2012. A decision on the merits would then be expected in late 2012 or 2013.

Ugh, there is no technological reason why you couldn't have access to every single volume in every single library in the world on your phone. Imagine that; if everyone with an internet connection had access to the entire written collection of humanity. It's these darn Luddites holding us back.

I hope the Authors win. Googles wishes to handle "orphaned" works just plain sucked. They would make no effort to find out if an author was still alive for a work beyond a 30 sec google search. If you did not come up as alive with an good mailing address then no royalties for you unless you called google on your own. Basically they wanted to not pay royalties unless the author specifically contacted them for the royalty. Basically a fuck the author position. I think the Guild is doing a good job representing the authors rights.

Ugh, there is no technological reason why you couldn't have access to every single volume in every single library in the world on your phone. Imagine that; if everyone with an internet connection had access to the entire written collection of humanity. It's these darn Luddites holding us back.

>>Basically they wanted to not pay royalties unless the author specifically contacted them for the royalty.

That seems eminently reasonable -- it's up to the copyright holder to be concerned about protecting his copyright. After all, it would take less than 30 seconds to searhc Google for your books.

Claiming that only a 30 second search is required seems a a bit minimalistic -- but there are a lot of orphan works that can't legitimately be accessed, or works that the copyright holder does not make available, and they should be. Prime example being the RA Lafferty works - I really want the rest of the Devil is Dead, and don't care if its a scan or not. Out of print, and damn hard to find.

I hope the Authors win. Googles wishes to handle "orphaned" works just plain sucked. They would make no effort to find out if an author was still alive for a work beyond a 30 sec google search. If you did not come up as alive with an good mailing address then no royalties for you unless you called google on your own. Basically they wanted to not pay royalties unless the author specifically contacted them for the royalty. Basically a fuck the author position. I think the Guild is doing a good job representing the authors rights.

Be careful here not to generalize the claims. Many authors do not see anything wrong with this, so Google is correct in saying that the Guild does not represent the majority, only the vocal minority seeking a larger compensation for work that would not be very profitable if let to stand on its own merits.

I hope the Authors win. Googles wishes to handle "orphaned" works just plain sucked. They would make no effort to find out if an author was still alive for a work beyond a 30 sec google search. If you did not come up as alive with an good mailing address then no royalties for you unless you called google on your own. Basically they wanted to not pay royalties unless the author specifically contacted them for the royalty. Basically a fuck the author position. I think the Guild is doing a good job representing the authors rights.

Boo f*cking hoo.

You have the preservation of works for future generations weighed against authors that can object if necessary. "Who gets the check" is a potentially tricky legal issue that's more complicated than just some haphazard Google search.

On the other hand, Google Books is a single source for people to complain.

The entire "Google is evil" position depends on a basic legal fallacy that copyright is supposed to be some sort of virtual land grab. It's not. So the issue of "preservation of works" is much more important than anyone's payday.

I hope the Authors win. Googles wishes to handle "orphaned" works just plain sucked. They would make no effort to find out if an author was still alive for a work beyond a 30 sec google search. If you did not come up as alive with an good mailing address then no royalties for you unless you called google on your own. Basically they wanted to not pay royalties unless the author specifically contacted them for the royalty. Basically a fuck the author position. I think the Guild is doing a good job representing the authors rights.

The problem is in bootstrapping a royalties collecting agency in a medium where the vast majority of works are orphaned and there is no existing database linking works to anything more than an author name. I don't remember it being opt-in by default, only opt-in if they can't find you (which, in reality, will of course miss large numbers of authors).

Remember there are other rights here besides authors' rights. It would be nice if Congress stepped in and made some decisions on orphaned works...there's a ton of culture out there that basically no one has access to and no one owns the rights to.

Ugh, there is no technological reason why you couldn't have access to every single volume in every single library in the world on your phone. Imagine that; if everyone with an internet connection had access to the entire written collection of humanity. It's these darn Luddites holding us back.

The authors' income are not ad supported like Google.

In all likelihood, the authors have no income. They have no income because these are long forgotten works that should be in the public domain already.

If Google does nothing, then authors continue to get nothing and they and their works continue to be forgotten.

If Google does it's thing, then their works become much more visible and so do the authors. They have a much better chance of getting anything.

I hope the Authors win. Googles wishes to handle "orphaned" works just plain sucked. They would make no effort to find out if an author was still alive for a work beyond a 30 sec google search. If you did not come up as alive with an good mailing address then no royalties for you unless you called google on your own. Basically they wanted to not pay royalties unless the author specifically contacted them for the royalty. Basically a fuck the author position. I think the Guild is doing a good job representing the authors rights.

If the book is more than 10 years old and the author can't be found in a 30 sec google search, chances are the royalties they are currently seeing are totally insignificant. Hell, if they aren't a bestseller, they'll probably never see any royalties past their advance anyway.

This looks like a property rights issue to me. Does the government have the right to basically impound the IP of these authors and assign Google the right to reproduce it, just because the author is hard to find? I'm skeptical of that. Of course the government has made this more complicated by essentially extending the duration of copyright forever. This seems like the unintended consequence of that.It seems to me the best thing would be to restore some kind of sane limit on the duration of copyright and let these old works fall into the public domain (along with Mickey Mouse and the Beatles recordings).

I generally support Google efforts; in fact, I even support the idea of the scanning process being made available in electronic format.

However, (despite the fact that this is good courtroom navigation on their part) this does leave a bad taste in my mouth. I understand both sides of the argument, but this maneuvering is exactly the kind of shit that we've come to expect from Microsoft (re: XBox) and Sony (re: Playstation 3).

I'm quite amazed that even in this instance Google is finding support, it seems due to Android that anything does is Good no matter what. I take all these in favour wouldn't be bothered about google just coming in andd taking their work without even asking, its paramount to theft.

You guys who are opposed to Google on this:Don't you feel the irony in using a statute which only exists to "To promote the Progress of Science and useful Arts" being used to block progress? lvlln is right. Our entire culture, our whole world, is being held back because of our ridiculous copyright laws.

Ugh, there is no technological reason why you couldn't have access to every single volume in every single library in the world on your phone. Imagine that; if everyone with an internet connection had access to the entire written collection of humanity. It's these darn Luddites holding us back.

The authors' income are not ad supported like Google.

In all likelihood, the authors have no income. They have no income because these are long forgotten works that should be in the public domain already.

If Google does nothing, then authors continue to get nothing and they and their works continue to be forgotten.

If Google does it's thing, then their works become much more visible and so do the authors. They have a much better chance of getting anything.

Of course, this makes perfect sense, but since it is Google, it must be destroyed.

This looks like a property rights issue to me. Does the government have the right to basically impound the IP of these authors and assign Google the right to reproduce it, just because the author is hard to find? I'm skeptical of that. Of course the government has made this more complicated by essentially extending the duration of copyright forever. This seems like the unintended consequence of that.It seems to me the best thing would be to restore some kind of sane limit on the duration of copyright and let these old works fall into the public domain (along with Mickey Mouse and the Beatles recordings).

I don't see it as impounding, since copyright only entails a right to exclude, (and besides, the copyright exists entirely as a gift of the government). I don't believe Google is somehow excluding others from continuing to produce copies, so they have not been assigned the copyright of the works. If they are doing something wrong legally, it is producing copies without permission, which is merely copyright infringement. However, I'd have to guess Google's process has more 'good faith' to it than many of the users of DMCA complaints.

I'm quite amazed that even in this instance Google is finding support,

Either because you're not paying attention, or because you have a prejudice and don't really care about facts, history, or law. I suppose that there's another possibility, but I'm not coming up with it quickly here.

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...it seems due to Android that anything does is Good no matter what.

Non-sequiturs are good, pumpkin pie is awesome!

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I take all these in favour wouldn't be bothered about google just coming in andd taking their work without even asking, its paramount to theft.

I surely would not be bothered about Google coming in and making a detailed replica of something that I had on public display, and making that replica available. But since that's not theft, I guess we're not talking about the same thing. Alternatively, you're making incendiary statements without any support for reasons unknown.

I'm quite amazed that even in this instance Google is finding support, it seems due to Android that anything does is Good no matter what. I take all these in favour wouldn't be bothered about google just coming in andd taking their work without even asking, its paramount to theft.

You obviously have no understanding of the problem. While I work for a major academic library I'm not a librarian so let me see if I can enlighten you. We are not a Google scanning partner.

Who exactly is Google supposed to ask? There are huge number of possible ownership scenarios involved here so let me highlight a few major ones. In many cases the author can't be found and the publisher disappeared ages ago. So not only is it unclear as to who actually owns the copyright of a particular work there is no one to ask. In other cases the author can't be found but the publisher is still around but has basically discontinued publishing the book decades ago. And yes there is the case where Google hasn't done enough leg work and should be able to find the rights holder. If this was few books it would hardly be excusable but when your talking about hundreds of thousands of works it becomes a lot more understandable. The one thing that is common in every case is that no one is currently making any money off of these works.

Our library currently has about a hundred thousand monographs that have been out of print for at least 30 years. Most of these works sit unused because the only information we can give to people consists of the data contained in a MARC records, many of which are incomplete stubs. In one particular case we contacted and still in business publisher about obtaining a new copy of a 45 year old monograph. We were told they had no intention of reprinting such and old work and couldn't even if they wanted to. They didn't have digital copies of any works older than 20 years and lost many of the originals do to warehouse water and mold problems. We asked if we could scan it and make it available to our patrons and they said no. We then offered to scan it and provide them with a copy and the threatened to sue us we scanned the book for any reason. So what you have us and Google do? Say screw itm humanity won't miss one book?

The real question in all of this is what is the greater good. Should be allow these works to rot on shelves unreachable by most of humanity because authors and publishers refuse to do any work to make them available or should we make them available knowing a small minority will lose out on a few dollars?

I take all these in favour wouldn't be bothered about google just coming in andd taking their work without even asking, its paramount to theft.

I surely would not be bothered about Google coming in and making a detailed replica of something that I had on public display, and making that replica available. But since that's not theft, I guess we're not talking about the same thing. Alternatively, you're making incendiary statements without any support for reasons unknown.

ps the word you're looking for is 'tantamount'

I dunno, given the way many rightsholders act, it is a far worse act than actual theft. He may have actually meant that it was paramount to theft.

I suspect that the actual oposition is probably from current authors who fear that what Google is doing somehow erodes the value of their product (similar to the publishers being worried about cheap eBooks). It's fear of the changes taking place in media. And there are probably a number out there who legitimately worry that Google will somehow make money off their product without compensating them.

So I am going to side with Google on this one. Even if Google is in it for the money, the project is performing an invaluable service to human kind, and those authors would receive no compensation anyway.

As a researcher, I come across texts from time to time that I would love to have access to beyond library (an often inter-library) loan. These texts aren't even forgotten, they're just in the long-tail. Perhaps a few people a year would buy a copy, so printing them is not economically feasible, nor do the publishers have a good way to judge what the demand would be. I would pay money, but I can't even do that unless I can find a used copy. For many of the books I can't even do that. Thanks, Authors' Guild.

I don't see it as impounding, since copyright only entails a right to exclude, (and besides, the copyright exists entirely as a gift of the government). I don't believe Google is somehow excluding others from continuing to produce copies, so they have not been assigned the copyright of the works.

Copyright is about more than a right to exclude. For example, it includes the right to determine who may financially benefit from it. In this case the government would be assuming that right and permitting Google to financially benefit. Say I own a fence and a billboard company wants to put a sign on it. Just because I don't answer my phone or mail, it doesn't give the government the right to grant the billboard company the right to put an advertisement on my fence and make a profit from it.You could say the deed to my property is a gift from the government, but that doesn't mean I don't own it.

The problem is that no one trusts Google anymore. They're just a bunch of IP theives. They are a bunch of liars to, so you can't count on their word either. Buzz, WiFi, YouTube, Android, Search - their trail of lies and deception is unending.

For example, it includes the right to determine who may financially benefit from it.

That determination only includes exclusion, and only certain types of it. Action Comics #1 may still be copyright by DC, but if I own a copy of Action Comics #1, I can financially benefit by selling it, and there's nothing DC can do about it. Some countries have laws that contrast the first sale doctrine, but they also have smelly people and a different justification for copyright law. The only thing they could stop me from doing is making copies of my copy and distributing those.

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In this case the government would be assuming that right and permitting Google to financially benefit. Say I own a fence and a billboard company wants to put a sign on it. Just because I don't answer my phone or mail, it doesn't give the government the right to grant the billboard company the right to put an advertisement on my fence and make a profit from it.

You keep stating things in terms of positive rights, which doesn't fit. Within your analogy, it's more like a billboard company puts up a sign on a seemingly abandoned fence, which is an act that is fine if nobody owns the fence anymore. If the fence is still owned, stopping that fits well within the right to exclude others from usage of your property, but if the property is seemingly abandoned, more complex things like squatter's rights may come into play.

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You could say the deed to my property is a gift from the government, but that doesn't mean I don't own it.

The government can't take your property without compensation/due process. The gift of the government is the stability and clarity of your property, primarily through law enforcement. That police might retrieve something stolen from you is definitely a gift of the government. That you own said thing in the first place isn't a gift of the government.

brentK wrote:

JEDEDIAH +1

I suspect that the actual oposition is probably from current authors who fear that what Google is doing somehow erodes the value of their product (similar to the publishers being worried about cheap eBooks)

In this case, one noticeable harm to current authors is that it would make more books, particularly those that compete with their books in some manner, widely and cheaply available. I've heard arguments that keeping out legal competition of countless other works was actually more valuable to the CTEA proponents than the royalties from the handful of works that were near expiration but still had commercial value.

I don't see it as impounding, since copyright only entails a right to exclude, (and besides, the copyright exists entirely as a gift of the government). I don't believe Google is somehow excluding others from continuing to produce copies, so they have not been assigned the copyright of the works.

Copyright is about more than a right to exclude. For example, it includes the right to determine who may financially benefit from it. In this case the government would be assuming that right and permitting Google to financially benefit. Say I own a fence and a billboard company wants to put a sign on it. Just because I don't answer my phone or mail, it doesn't give the government the right to grant the billboard company the right to put an advertisement on my fence and make a profit from it.You could say the deed to my property is a gift from the government, but that doesn't mean I don't own it.

You just argued above that copyright periods should be much shorter, aka the government should take away your fence quickly. Moreover a fence does little good to anyone but to the properties on either side of the fence. Moreover a billboard alone adds no value to the fence. Moreover a fence is a singular and fixed entity. This is why analogies are stupid.

We aren't just talking about google here. Your work does not enter the public domain by the grace of the government; on the contrary, you are just granted an exclusive right to it only for a while. The reality is that even things published decades ago will not enter the public domain in our life time. This is why copyright lengths today are bad. But the issue here is really about orphaned works. Yes, it will be unfair to some people that will not realize they should be making royalties and won't collect them. The argument is not, 'who cares about them?', it's that the benefits outweigh the disadvantages. Copyright law is inherently a balancing of interests; there is no solution that maximizes outcomes for all parties.

Our library currently has about a hundred thousand monographs that have been out of print for at least 30 years. Most of these works sit unused because the only information we can give to people consists of the data contained in a MARC records, many of which are incomplete stubs. In one particular case we contacted and still in business publisher about obtaining a new copy of a 45 year old monograph. We were told they had no intention of reprinting such and old work and couldn't even if they wanted to. They didn't have digital copies of any works older than 20 years and lost many of the originals do to warehouse water and mold problems. We asked if we could scan it and make it available to our patrons and they said no. We then offered to scan it and provide them with a copy and the threatened to sue us we scanned the book for any reason. So what you have us and Google do? Say screw itm humanity won't miss one book?

The real question in all of this is what is the greater good. Should be allow these works to rot on shelves unreachable by most of humanity because authors and publishers refuse to do any work to make them available or should we make them available knowing a small minority will lose out on a few dollars?

Yes, totally should say screw it, if the owners says NO, who are you and Google to say, sod it I am doing it anyway? If I want to drive your car, and you said no, would you say it was acceptable for me to say, sod it, I'm doing it anyway? No you wouldn't, so why is it acceptable in this instance? Does it some how make it right to disregard the owner just causes its paper or causes its a book, it shouldn't do.

I don't see it as impounding, since copyright only entails a right to exclude, (and besides, the copyright exists entirely as a gift of the government). I don't believe Google is somehow excluding others from continuing to produce copies, so they have not been assigned the copyright of the works.

Copyright is about more than a right to exclude. For example, it includes the right to determine who may financially benefit from it. In this case the government would be assuming that right and permitting Google to financially benefit. Say I own a fence and a billboard company wants to put a sign on it. Just because I don't answer my phone or mail, it doesn't give the government the right to grant the billboard company the right to put an advertisement on my fence and make a profit from it.You could say the deed to my property is a gift from the government, but that doesn't mean I don't own it.

You just argued above that copyright periods should be much shorter, aka the government should take away your fence quickly. Moreover a fence does little good to anyone but to the properties on either side of the fence. Moreover a billboard alone adds no value to the fence. Moreover a fence is a singular and fixed entity. This is why analogies are stupid.

We aren't just talking about google here. Your work does not enter the public domain by the grace of the government; on the contrary, you are just granted an exclusive right to it only for a while. The reality is that even things published decades ago will not enter the public domain in our life time. This is why copyright lengths today are bad. But the issue here is really about orphaned works. Yes, it will be unfair to some people that will not realize they should be making royalties and won't collect them. The argument is not, 'who cares about them?', it's that the benefits outweigh the disadvantages. Copyright law is inherently a balancing of interests; there is no solution that maximizes outcomes for all parties.

My point is that the government has basically established copyright in perpetuity. That's essentially a grant of an eternal property right. It turns out this has some downsides. For one, it's no longer about balancing interests because nothing ever passes into the public domain. Who gets to decide when a work has been orphaned? It should at least be congress rather than some "activist" judge somewhere. I'd rather see the problem solved by restoring balance to copyright rather than making an exception for the unrepresented, but in any case I don't see it as something for a judge to decide.

I don't think my fence analogy is as bad as you do. Perhaps my fence is overlooking a freeway and I enjoy driving by and seeing it as I made it. Somebody else sees it as an opportunity to sell ads. For whatever reason, I don't want to use it for advertising and the government has granted me a near perpetual right to make that decision. If you want to take that decision out of my hands you should to it by changing the law, not by trying to get some judge to make a decision for me.

The problem is that no one trusts Google anymore. They're just a bunch of IP theives. They are a bunch of liars to, so you can't count on their word either. Buzz, WiFi, YouTube, Android, Search - their trail of lies and deception is unending.

My point is that the government has basically established copyright in perpetuity. That's essentially a grant of an eternal property right. It turns out this has some downsides. For one, it's no longer about balancing interests because nothing ever passes into the public domain. Who gets to decide when a work has been orphaned? It should at least be congress rather than some "activist" judge somewhere. I'd rather see the problem solved by restoring balance to copyright rather than making an exception for the unrepresented, but in any case I don't see it as something for a judge to decide.

I don't think my fence analogy is as bad as you do. Perhaps my fence is overlooking a freeway and I enjoy driving by and seeing it as I made it. Somebody else sees it as an opportunity to sell ads. For whatever reason, I don't want to use it for advertising and the government has granted me a near perpetual right to make that decision. If you want to take that decision out of my hands you should to it by changing the law, not by trying to get some judge to make a decision for me.

It's hard to see what you're arguing here. However, if you read my first comment in this thread, you'll see:

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Remember there are other rights here besides authors' rights. It would be nice if Congress stepped in and made some decisions on orphaned works...there's a ton of culture out there that basically no one has access to and no one owns the rights to.

Your analogy is still a poor one, (even if we stick with the appeal to emotion, which seems to be your point here). Keeping your land billboard free is very different from a published work rotting on microfilm and unseen by human eyes. Copyright law is intended to incentivize the creation of content, not to ensure that it remains untouched forever unless an author affirms that they want it sold again and then pays to do so. You will not succeed in finding the vast majority of the authors of orphaned works (or their heirs), regardless of effort.

So we both agree that the government needs to take away your fence pretty soon (glad you agree . Even in that fantasy, that is not a sufficient solution for orphaned works however, since you won't be able to retroactively shorten existing copyright lengths. Something specific needs to be done about them.

In reality, where copyright lengths are not going to be shortened, something can still be done. Waiting until 2048 is not in the public good, and that ignores pretty much everything published after 1964 (48 years ago) which has its copyright automatically renewed and won't expire until 2059 and up.

I think a big part of author worries that Google will not make a large enough effort to look for orphan work authors before publishing their works for Googles profit cutting them off from their rightful royalties. After all it is in Googles advantage to make little to no effort to find the authors. They get a "free" book to publish if the never find an author after an "in depth search" that is never really done. I think that the solution will come down to either a guaranteed trust fund with a minimum royalty set by the author guild for all orphaned work held for the authors until found for all orphaned works say for 20 years and then the funds revert to the trust to fund looking for authors of new orphaned works. Another words Google never benefits by not looking for the missing authors. Or Google must wait until the work is out of maximum copy right for scanned works with an unclear legal status. Let Google scan it and archive it but hold it until the rights can reasonably be said to have expired for unclear/orphaned works they can't clear the rights to. Make it to Googles advantage to find an author before profiting from it rather than be to Googles advantage to never seriously look for an author.

As far as the legal argument goes about kicking the Authors Guild out of the case it just smell to high heave. It looks wrong from an outside observers point of view. Forcing the case onto a handful of individual authors VS one of the largest most profitable companies in America just feels unfair/ slimy. In theory the Authors Guild is composed of a collection of published authors so could be said to represent a large number of interested parties to the lawsuit. I think Google is right to try to kick them out from a legal tactic point of view as it makes it more likely they will "win" but the optics are just so bad. If the results in the end feel to lopsided Googles rep will take a hit especially if they resort to technicalities and loop holes to win.

I have only been following the Google book scanning thing somewhat lazily, but I'll say what I would like to see:

1) Google should not end up being the sole repository for the works it scans. Copies should also go to the Library of Congress (and/or equivalent agencies of other nations). The agreement as I last saw it gave libraries "access to" these works; I don't think that goes far enough. I want to see libraries having independent digital copies of these works, so that if Google dies in a fire, the scanned books are not lost.

2) Google should not become the sole price-setter for those orphaned works. There should be some mechanism by which other for-profit online booksellers can sell the works and compete with Google's pricing. There are lots of ways this could be done; I won't get bogged in details.

3) Where publication dates can be known or estimated, Google (and any other entity which ends up reselling the scanned works) should keep records of all revenues generated by the work, and stand ready to pay the author(s) a reasonable royalty based on those works, for the entire period of copyright applicable to that work. Google should be required to build a workflow allowing any copyright holder to establish their claim and collect those royalties for the entire length of the copyright. In other words, if the copyright lasted (for example) 85 years and the author showed up to collect his royalties in the 81st year of that term ... he should be able to collect them. And if he wants his works removed from Google's repository, he should be able to do that, too.

4) Google's profits from unclaimed works should in some way, benefit the public. Let them set aside some portion of these profits to build awesome public libraries or art museums or something. Their Book Rights Repository is nice, but I'd like to see them do a bit more.

I am surprised that Google has not proactively offered up these sorts of things. Or if it has, that this has not been made more clear.

My point is that the government has basically established copyright in perpetuity. That's essentially a grant of an eternal property right. It turns out this has some downsides. For one, it's no longer about balancing interests because nothing ever passes into the public domain. Who gets to decide when a work has been orphaned? It should at least be congress rather than some "activist" judge somewhere. I'd rather see the problem solved by restoring balance to copyright rather than making an exception for the unrepresented, but in any case I don't see it as something for a judge to decide.

An orphaned work doesn't seem like something that has a clear definition, and I don't think it can be given a really clear definition, especially given that it could vary drastically depending upon medium. Even within printed literature, magazines and newspapers are far more short lived than hardcover books, and artwork within a book may become lost far sooner than words would be, increasing the need to digitally archive it. It's also an issue that already involves fair use factors. Digitizing and making an archive available to libraries is far different than printing copies for for-profit usage. Congress offering guidance on this issue could be a great thing, but it's well within the realm of what would is and has traditionally been settled by case law.

annomander wrote:

Yes, totally should say screw it, if the owners says NO, who are you and Google to say, sod it I am doing it anyway? If I want to drive your car, and you said no, would you say it was acceptable for me to say, sod it, I'm doing it anyway? No you wouldn't, so why is it acceptable in this instance? Does it some how make it right to disregard the owner just causes its paper or causes its a book, it shouldn't do.

Because the underlying economic arguments for physical property and copyright are fundamentally different, so firmly applying the logic of one to the other is stupid, and demonstrates a complete lack of understanding of WHY we have copyright.

Some of you might be interested to learn of a concept from property law called "adverse possesion." http://en.wikipedia.org/wiki/Adverse_possession Squatter's rights are one form of adverse possesion. Basically it means that if you neglect your real property, and don't actively attempt to defend your claim to the property by attempting to evict squatters and other trespassers, eventually you give up the claim to that property. I'm not sure how that works in intellectual property law.

annomander wrote:

Yes, totally should say screw it, if the owners says NO, who are you and Google to say, sod it I am doing it anyway?

What if the owners don't say no, and in fact don't say anything? No property rights are absolute.

It seems like a strange situation. I dislike any "Authors Unions", because they are usually run by people that are "bloodsuckers" of the author's rights. And they most definitely shouldn't be allowed to cover all authors' rights.

However, not giving the actual groups of authors being represented in court is not a bad position.

Yes, totally should say screw it, if the owners says NO, who are you and Google to say, sod it I am doing it anyway? If I want to drive your car, and you said no, would you say it was acceptable for me to say, sod it, I'm doing it anyway? No you wouldn't, so why is it acceptable in this instance? Does it some how make it right to disregard the owner just causes its paper or causes its a book, it shouldn't do.

Yeah and we all end up in the same place as the middle ages - all knowledge locked up in guilds or monasteries libraries inaccessible to the majority of people.The main reason why patents were created is to make sure that people shared their knowledge in return for temporary monopoly on that knowledge. We end up having the same rights used to return to the same state. Librarians are banging on and on about archiving rights for digital media for a long time now. And librarians don't have any other purpose other than save the knowledge for generations to come.

This whole thing is about what Google's main goal is as a company - organize the world's information.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.